Markian Hawryluk
The Bulletin

The Oregon Supreme Court ruled this week that patients can bring medical malpractice cases not only when they are injured but also when negligent care denies them a treatment with a potentially better outcome.

Physician groups warned the ruling could lead to more lawsuits, driving up the cost of medical liability insurance and increasing the practice of defensive medicine. Trial lawyers countered that the decision is likely to apply to only a handful of cases but would provide meaningful protections for patients.

“This gives Oregon consumers of health care more rights,” said Stephen Hendricks, a Portland lawyer who represented the plaintiff in the case.

The ruling stems from a malpractice case filed by Joseph Smith, who went to a Hood River emergency room in 2011 concerned he was having a stroke. Doctors discharged him without ordering an MRI or prescribing clot-busting drugs. By the time an MRI confirmed a stroke a week later, Smith had incurred significant brain damage.

Smith’s lawyer argued that the doctors’ negligence cost Smith the chance for a treatment that helped 1 in 3 stroke patients recover with little or no symptoms. But the Multnomah County Circuit Court dismissed the case on the grounds that “loss of chance” is not a cause of action for medical malpractice in Oregon. Smith’s attorneys appealed, but the appellate court upheld the lower court decision. Smith then took the case to the state Supreme Court.

According to a 2014 analysis, at least 41 states have ruled on loss of chance, with 24 states allowing it as a basis for negligence cases. The remainder require patients to show it’s more likely than not that negligence caused their injuries.

“That’s not how people think,” said Travis Eiva, a Portland attorney who wrote a brief on behalf of the Oregon Trial Lawyers Association for the case. “If we have a 33 percent chance of beating cancer, that’s a valuable thing. In fact, we’ll pay $100,000 for that treatment tomorrow. So it’s something of great value.”

The court decision allows patients to seek damages if doctors fail to follow the standard of care and that chance is taken away.

“I think most people would agree that if they walked into a hospital and didn’t receive their 1 in 3 chance of saving their life, they would want some accountability for that,” Eiva said.

Missed opportunity

Smith, who was 49 at the time, had gone to the emergency room at Providence Hood River Memorial Hospital on a Friday afternoon less than two hours after first experiencing vision problems, confusion, slurred speech and a headache.

He was seen by Dr. Linda Desitter, a doctor with Hood River Emergency Physicians. According to the court ruling, Desitter did not complete a physical exam or a thorough neurological examination. A CT scan showed no bleeding in Smith’s brain. Doctors could have used a clot-busting drug known as tPA had they diagnosed a stroke. The radiologist recommended that if symptoms persisted, Smith should undergo an MRI.

But Desitter told Smith his symptoms were probably due to a sleep aid he had taken, advised him to have his vision checked and discharged him.

The following night, Smith returned to the emergency room complaining that his pain had worsened and that he was still having vision problems. Desitter, who was on duty again that night, diagnosed him with a headache and visual disturbance and prescribed the painkiller Vicodin.

On Monday, Smith saw Dr. Michael Harris, a family physician with Hood River Medical Group, who ordered an MRI, but not on an expedited basis. Smith sued Desitter and Harris, their medical groups, and Providence for medical negligence, arguing that because the doctors had not taken the proper steps to follow up on his complaints, he lost an opportunity at a treatment that had a 33 percent chance of a full or nearly full recovery.

Mixed reactions

The Oregon Medical Association and American Medical Association filed a brief arguing that allowing loss of chance cases would drive up the number of malpractice suits and malpractice insurance premiums, and spur doctors to practice defensive medicine. But the justices said the groups couldn’t provide any data from other states to support those claims.

“This is a significant ruling because it creates a brand-new legal theory of medical liability in Oregon,” said Mark Bonanno, general counsel for the OMA. “Logic dictates that, with an expanded definition of what physicians can be held liable for, we expect to see more litigation. We do not think more litigation is better for patients and our health care system.”

Hendricks said he does not expect the decision will allow trial lawyers to bring many more cases. The ruling carves out only that small area where medicine by its own standards says “we don’t know that we can save all people but we can save some so it’s incumbent on us to try to get the best outcome for the most people,” he said. “Since that’s a small subset of medicine, it’s going to be a small subset of any medical malpractice cases.”

Loss of chance cases also face significant logistical hurdles. Damages awarded for a lost chance at treatment are generally less than when lawyers can show actual direct injury. That makes it harder for lawyers to recoup the costs of bringing a case to trial. It may be only the most egregious cases of negligence and those where plaintiffs are very likely to prevail that will be financially viable.

Providence Health provided a statement saying it was reviewing the case and preparing a response for when the lawsuit returns to circuit court. The Supreme Court ruling applied only to the issue of whether such loss of chance cases could proceed to trial, not on Smith’s actual complaint.

Smith, who was a weightlifter and restaurant manager at the time of his stroke, is suing for lost wages and noneconomic damages.

“He’s barely able to hold down a job as a custodian at a church,” Hendricks said. “A regular custodian job was too much for him. He’d mop the floor and go away, and come back to mop the same floor again.”

— Reporter: 541-633-2162,